Data Processor Addendum

1.    BACKGROUND

1.1. The Customer and Asksenti Ltd ("Asksenti Ltd", "we", "our" or "us") entered into a pricing plan incorporating our terms and conditions (together, the "Agreement").

1.2.  This DPA is between Asksenti Ltd and the Customer (each a "Party" and collectively the "Parties"), pursuant to the Agreement.

1.3.  In the event that we process any Authorised User Data and/or Customer End User Data of individuals located in the UK or the EEA, or of any Customer who is established in the UK or the EEA, this Data Processing Agreement (the "DPA") shall be supplemental to the Agreement and apply to the processing of such Authorised User Data and/or Customer End User Data. In the event of a conflict between any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail.

1.4. The Parties agree that this DPA will replace any existing data protection agreement or similar agreement the Parties may have previously entered into in connection with the Services.

2.    DEFINITIONS

2.1. Unless otherwise set out below, each capitalised term in this DPA shall have the meaning set out in the Agreement, and the following capitalised terms used in this DPA shall be defined as follows:

“personal data”, “data subject”, “processing”, “controller”, “data controller”, “processor”, “data processor” and “supervisory authority” shall have the respective meaning given to them in the UK GDPR or EU GDPR (as applicable).

"Authorised User" means the Customer's employees; any contract staff who are working for the Customer; and any other person working with, or on behalf of, the Customer who are granted access to the Services exclusively on the Customer's behalf and with the Customer's prior authorisation.

"Authorised User Data" means the "personal data" relating to each Authorised User.

"Controller" has the meaning given in the UK GDPR.

"Customer End User" means an end user of the Customer.

"Customer End User Data" means the "personal data" relating to each Customer End User.

"Data Protection Laws" means the UK Data Protection Legislation and any other European Union legislation (including the EU GDPR) relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

"EEA" means the Member States of the European Union together with Iceland, Norway, and Liechtenstein.

"EU GDPR" means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.

"Ex EEA Transfer" the export of personal data to a country or territory outside the EEA other than a country or territory ensuring an adequate level of protection of personal data as determined by the European Commission.

"Ex UK Transfer" the export of personal data to a country or territory outside the UK when such transfer is not governed by an adequacy decision made by the Secretary of State in the UK in accordance with the relevant provisions of the UK GDPR and the Data Protection Act 2018.

"Security Incident" means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Authorised User Data and/or Customer End User Data.

"Services" has the same meaning given in the Agreement.

"Software" has the same meaning given in the Agreement.

“Standard Contractual Clauses” or “SCCs” means the Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679, adopted by the European Commission decision (EU) 2021/914 of 4 June 2021.

"Sub-processor" means any sub-processor engaged by us who agrees to receive from us Authorised User Data and/or Customer End User Data.

"UK Data Protection Legislation" means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

"UK GDPR" has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

"UK SCCs" means the Standard Contractual Clauses as amended by the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK ICO under S119A(1) Data Protection Act 2018 and in force March 21, 2022     .

3.     DATA PROCESSING

3.1. Customer as Controller. The Customer and Asksenti Ltd acknowledge that for the purpose of Data Protection Laws, the Customer is the controller and Asksenti Ltd is the processor.

3.2. Customer Compliance. The Customer retains control of the personal data and remains responsible for its compliance obligations under applicable Data Protection Laws, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to Asksenti Ltd.

3.3. Nature and Purpose of Processing. Annex A describes the subject matter, duration, nature and purpose of processing and the personal data categories and data subject types in respect of which Asksenti Ltd may process personal data in order to provide the Services and fulfil its obligations under the Agreement.

3.4.   Instructions for Data Processing.

(a) We will only process Authorised User Data and/or Customer End User Data in accordance with the Customer’s written instructions, unless processing is required by UK, European Union or Member State law to which we may be subject, in which case we shall, to the extent permitted by UK, European Union or Member State law, inform the Customer of that legal requirement before processing such data. The Agreement and this DPA shall be the Customer’s complete and final instructions to us in relation to the processing of such data.

(b) We will comply with the Customer's written instructions requiring us to amend, transfer, delete or otherwise process Authorised User Data/Customer End User Data, or to stop, mitigate or remedy any unauthorised processing, unless legally prohibited from doing so.

(c) We will notify the Customer if, in our opinion, the Customer’s instructions would not comply with Data Protection Laws.

3.5.  Additional processing. Processing outside the scope of this DPA or the Agreement will require prior written agreement between the Customer and us with regards to any additional instructions for processing.

3.6.   Required consents. Where required by applicable Data Protection Laws, Customer will ensure that it has obtained or will obtain all necessary consents for the processing of Authorised User Data and/or Customer End User Data by us in accordance with the Agreement. Customer is responsible for the accuracy, quality, and legality of the Authorised User Data and/or Customer End User Data, and the means by which Controller acquired such personal data.

4.    TRANSFER OF PERSONAL DATA

4.1.  Authorised Sub-processors. Subject to this section 4, Asksenti Ltd is hereby given general authorisation to engage sub-processors without obtaining any further written, specific authorisation from Customer. The Customer agrees that we may use the Sub-processors set out in Annex B. We shall continuously update Annex B with information on the sub-processor(s) and share the updated Annex B with the Customer when changes are made.     .

(a) We shall not permit, allow or otherwise facilitate Sub-processors to Process Authorised User Data and/or Customer End User Data unless we enter into a written agreement with the Sub-processor which imposes substantially similar obligations on the Sub-processor with regard to their Processing of Authorised User Data, and/or Customer End User Data as are imposed on us under this DPA.

(b) We shall notify the Customer from time to time of the identity of any changes/additions to the Sub-processors we engage.

(c) If the Customer (acting reasonably) does not approve of a new Sub-processor, the Customer may request that we move the Authorised User Data and/or Customer End User Data to another Sub-processor, within seven days from the notification to Customer. If such a request is not received within this time frame, the new Sub-processor shall be deemed to have been approved. If a request is received from Customer within the time frame,      we shall, within a reasonable period of time following receipt of such request, use all reasonable endeavours to ensure that the relevant Sub-processor does not process any further Authorised User Data and/or Customer End User Data, and help identify an alternative.

4.2. Liability of Sub-processors. We will at all times remain responsible for compliance with our obligations under the DPA and will be liable to the Customer for the acts and omissions of any Sub-processor approved by the Customer as if they were our acts and omissions (subject to the terms of the Agreement).

4.3. Transfers of Personal Data.

(a) The Customer agrees to the transfer of personal data outside of the UK/EEA as set out in Annex B (as updated from time-to-time).

(b) Where the processing of Authorised User Data and/or Customer End User Data by us involves an Ex UK Transfer, such transfer shall be governed by the UK SCCs or such other legally recognised transfer method in force. Where the UK SCCs identify optional provisions (or provisions with multiple options) the following shall apply in the following manner:

1. Part 1 Tables:

1. Table 1: The Party details and contact information in Table 1 of the UK SCCs shall be the Party details and contact information as set out in Annex A of the DPA. The start date shall be the effective date of the DPA.

1. Table 2: subsection 4.3(c) of the DPA sets out the version of the EU SCCs which the UK SCCs are appended to, including the selected modules (Module 2), clauses, optional provisions and Appendix Information.

1. Table 3: "Appendix Information" means the information which must be provided for the selected modules as set out in the Appendix of the EU SCCs (other than the Parties), and which for this UK SCCs is set out in Annex A, Annex B and Annex C to the DPA.

1. Table 4: the Parties agree that neither the Importer nor the Exporter may end the UK Addendum as set out in Section 19.

1. Part 2 Mandatory Clauses of the Approved Addendum: being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section ‎18 of those Mandatory Clauses, are incorporated by reference.

(c) Where the processing of Authorised User Data and/or Customer End User Data by us involves an Ex EEA Transfer, such transfer shall be governed by the EU SCCs or such other legally recognised transfer method in force. The EU SCCs are amended as follows:

i. All explanatory notes and footnotes are deleted.

ii. As the Ex EEA Transfer is a controller to processor transfer, only the provisions relating to Module 2 apply to such Ex EEA Transfer, and the provisions relating only to Modules 1, 3 and 4 are deleted and shall not apply to such Ex EEA Transfer.

iii. Clause 7 (Docking Clause) the optional provision shall not apply     .

iv. In respect of Clause 9 (sub-processors), Option 2 general written authorisation applies, and the minimum time period for the data importer to specifically inform the data exporter in writing of any intended changes to that list in accordance with Clause 9 shall be 14 days.

v. The “OPTION” in Clause 11(a) shall not apply and the wording in square brackets in that Clause shall be deleted.

vi. In respect of Clause 13(a) (supervision), the supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, should be the Irish Data Protection Commission;     .

vii. In respect of Clause 17 (governing law), Option 1 shall apply and the Member State governing law shall be the law of Ireland.

viii. In respect of Clause 18 (choice of forum and jurisdiction), the relevant courts shall be the courts of Ireland.

ix. Annex I of the EU SCCs shall be deemed completed with the information set out in Annex A to this DPA; Annex II of the EU SCCs shall be deemed completed with the information set out in Annex C to this DPA; and Annex III of the EU SCCs shall be deemed completed with the information set out in Annex B to this DPA.

(d) To the extent that we process Authorised User Data and/or Customer End User Data originating from Switzerland the Parties agree that the terms of the EU SCCs shall be amended and supplemented as specified by the relevant guidance of the Swiss Federal Data Protection and Information Commissioner, and the following provisions shall apply: (i) general and specific references in the EU SCCs to GDPR, or EU or Member State Law, shall have the same meaning as the equivalent reference in Swiss Data Protection Laws (ii) in respect of data transfers governed by Swiss Data Protection Laws, the EU SCCs also apply to the transfer of information relating to an identified or identifiable legal entity where such information is protected similarly as Personal Data under Swiss Data Protection Laws until such laws are amended to no longer apply to a legal entity; (iii) where the data exporter falls within the territorial scope of application of Swiss Data Protection Laws and Regulations, the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority; and (iv) in respect of disputes, the choice of forum and jurisdiction as set out in the EU SCCs shall apply. For Data Subjects habitually resident in Switzerland, the law and courts of Switzerland are an alternative place of jurisdiction.

(e) To the extent an international transfer is governed by either the EU SCCs or UK SCCs and there is a conflict between the applicable standard contractual clauses, this DPA and the Agreement, the applicable standard contractual clauses shall prevail.

5.     DATA SECURITY, AUDITS AND SECURITY NOTIFICATIONS

5.1.   Asksenti Ltd Security Obligations. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, we will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including the measures set out at Annex C.

5.2. Compliance. Upon request by the Customer, we will make available all information reasonably necessary to demonstrate compliance with this DPA.

5.3. Audit. Asksenti Ltd will permit the Customer and its third-party representatives, at Customer’s expense (not more than once annually, in normal business hours, and in a manner which does not unreasonably interfere with Asksenti's business) to audit Asksenti's compliance with its obligations, on giving at least 30 days’ notice, during the term of the Agreement. Asksenti Ltd will give the Customer and its third-party representatives only such assistance as is reasonably necessary to conduct such audits. The Parties shall mutually agree upon the scope, timing and duration of the audit. Customer and/or any third-party representatives shall be subject to the confidentiality provisions of the Agreement except to the extent required to be disclosed to a data protection authority.

‍5.4.   Security Incident Notification. If we or any Sub-processor become aware of a Security Incident we will (a) notify the Customer of the Security Incident within 72 hours, (b) investigate the Security Incident and provide such reasonable assistance to the Customer (and any law enforcement or regulatory official) as required to investigate the Security Incident, and (c) take steps to remedy any non-compliance with this DPA.

5.5.   Asksenti Ltd Employees and Personnel. We will treat the Authorised User Data and Customer End User Data as confidential information of the Customer, and shall ensure that any employees or other personnel have agreed in writing to protect the confidentiality and security of Authorised User Data and Customer End User Data.

5.6. Assistance. We will provide reasonable assistance in meeting the Customer     ’s compliance obligations under Data Protection Laws, taking into account the nature of our processing and the information available to us, including in relation to data subject rights, data protection impact assessments and reporting to and consulting with relevant data protection authorities.

6.    ACCESS REQUESTS AND DATA SUBJECT RIGHTS

6.1.  Data Subject Requests. Save as required or where prohibited (as applicable) under applicable law, we will notify the Customer of any request received by us or any Sub-processor from a data subject in respect of personal data included in the Authorised User Data or Customer End User Data, and will not respond to the data subject. The Customer shall be solely responsible for responding substantively to any such data subject request or communications involving personal data.

6.2.  Changes. We will provide the Customer with the ability to correct, delete, block, access or copy the Authorised User Data or Customer End User Data in accordance with the functionality of the Services.

6.3. Disclosure. We will maintain the confidentiality of Authorised User Data and Customer End User Data and will not disclose such data to third parties unless the Customer or the Agreement specifically authorises such disclosure, or as required by domestic law, court or regulator. If a domestic law, court or regulator requires us to process or disclose personal data to a third party, we must first inform the Customer of such legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless we are legally prohibited from giving such notice.

7.     DATA RETURN AND DESTRUCTION

7.1. Return. We will at the Customer’s request return any Customer Data/Authorised User Data in our standard format.

7.2. Deletion/Destruction. On termination of the Agreement for any reason or expiry of its term we will immediately cease processing Authorised User Data and Customer End User Data and will within 30 days of being instructed in writing by the Customer either securely delete or destroy or return (and not retain, except as required for record keeping purposes), all of the personal data related to this Agreement in our possession.

8. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION

8.1.  To the extent required under applicable Data Protection Laws, we will provide reasonable assistance to the Customer with any data protection impact assessments and with any prior consultations to any supervisory authority of the Customer, in each case solely in relation to Processing of Authorised User Data or Customer End User Data and taking into account the nature of the processing and information available to us.

9.   LIABILITY

9.1. To the maximum extent allowed by applicable laws, the Parties liabilities arising out of or in connection with this DPA, whether in contract, tort or under any other theory of liability, will be subject to any aggregate limitation of liability and any exclusions of damages set forth in the Agreement, and any reference to the liability of the Parties shall mean the aggregate liability under the Agreement and this DPA together.

9.2. Asksenti Ltd will not be liable for any claim brought by a data subject arising from any action by Asksenti Ltd to the extent that such action resulted directly from the Customer’s instructions. In such case, the Customer shall indemnify, keep indemnified and defend at its own expense Asksenti Ltd against all associated costs, claims, damages or expenses incurred by Asksenti Ltd.

9.3. Each Party shall on their own be liable for any administrative fines that a supervising authority may impose due to their processing.

10. TERMINATION

10.1.  This DPA will remain in full force and effect so long as the Agreement remains in effect and will terminate immediately upon termination of the Agreement.

11. MISCELLANEOUS

11.1. This DPA and all non-contractual or other obligations arising out of or in connection with it are subject to the governing law and jurisdiction provisions of the Agreement, except with respect to (i) the EU SCCs, which shall be governed by the law of the Republic of Ireland, and (ii) the UK SCCs, which shall be governed by the laws of England and Wales.

11.2. This DPA constitutes the entire agreement between the Parties with regards to its subject matter, and supersedes and extinguishes all previous DPAs, agreements and understandings between the Parties, whether written or oral, relating to its subject matter.

ANNEX A

PERSONAL DATA PROCESSING PURPOSES AND DETAILS

Data Exporter: Customer

Data importer: Asksenti Ltd

Subject matter of processing: The processing is needed in order to enable the provision of Services pursuant to the Agreement.

Duration of processing: For the duration of the Agreement, unless otherwise agreed in writing.

Nature of processing: Storage, transmission and use in order to provide the Services.

Business purpose: For the provision of Services, pursuant to the Agreement.

Personal data categories:

Name, email address and online identifiers (such as IP address) of each Authorised User.

Information contained in feedback, chat transcripts or other format collected by the Customer and provided to Asksenti Ltd relating to each Customer End User.

Sensitive personal data: None.

Data subjects: Authorised User and Customer End User.

‍

ANNEX B

SUB-PROCESSORS

Authorised User Data:

Customer End User Data:

ANNEX C

TECHNICAL AND ORGANISATIONAL MEASURES

Introduction

We maintain internal policies and procedures, or procure that our Sub-processors do so, which are designed to:

a.    secure any personal data Processed by us against accidental or unlawful loss, access or disclosure;

b.    identify reasonably foreseeable internal risks to secure any unauthorised access to the personal data Processed by us;

c.     minimise security risks, including through risk assessment and regular testing.

We will conduct periodic reviews of the security of our network and the adequacy of our information security program as measured against industry security standards and our policies and procedures (including our security policy), and will use all practical efforts to procure that our Sub-processors do so as well.

We will periodically evaluate the security of our network and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews, and will use reasonable efforts to procure that our Sub-processors do so as well.

Access controls

We limit access to personal data by implementing appropriate access controls.

Availability and back-up of personal data

We regularly back-up data. Back-ups are stored separately and are encrypted at rest.

Disposal of IT equipment

We have in place processes to securely remove all personal data before disposing of IT systems (for example, by using appropriate technology to purge equipment of data and/or
destroying hard disks).

Encryption

We use encryption technology where appropriate to protect personal data held electronically.

Transmission or transport of personal data

We will implement appropriate controls to secure personal data during transmission or transit.

Device hardening

We will remove unused software and services from devices used to process personal data. Default passwords that are provided by hardware and software producers will not be used.

Physical security

We implement appropriate physical security measures to safeguard personal data.

Staff training and awareness

We carry out staff training on data security and privacy issues relevant to their job role and ensure that new starters receive appropriate training before they start their role.

Staff are subject to disciplinary measures for breaches of our policies and procedures relating to data privacy and security.